COURT OF APPEALS DECISION DATED AND FILED April 13, 2010 David
R. Schanker Clerk of Court of Appeals |
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NOTICE |
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This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
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Appeal No. |
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STATE OF WISCONSIN |
IN COURT OF APPEALS |
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DISTRICT I |
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State of Plaintiff-Respondent, v. Stephen J. Barry, Defendant-Appellant. |
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APPEAL
from a judgment and an order of the circuit court for
Before Fine, Kessler and Brennan, JJ.
¶1 PER CURIAM. Stephen J. Barry pled guilty to two felonies: (1) possessing cocaine (more than one gram but not more than five grams) with intent to deliver as a second or subsequent offense; and (2) bail jumping. See Wis. Stat. §§ 961.41(1m)(cm)1r., 961.48, 946.49(1)(b) (2007-08).[1] The circuit court imposed two concurrent six-year sentences. Barry appeals from the judgment of conviction and from the order denying his postconviction motion. The only issue is whether the circuit court erroneously exercised its sentencing discretion. We affirm.
BACKGROUND
¶2 On December 14, 2008, City of
¶3 Pursuant to a plea bargain, Barry pled guilty to both of the charges that arose on December 14, 2008. In exchange, the State agreed to dismiss but read in for sentencing purposes the earlier charge of possessing cocaine with intent to deliver. The State also agreed to recommend a prison sentence without specifying a recommended length for the term of imprisonment.
¶4 Barry conceded at sentencing that the State’s recommendation for a prison term was “not unreasonable.” He proposed an aggregate three-year term of imprisonment. The circuit court, however, imposed two concurrent six-year terms, bifurcated as thirty-six months of initial confinement and thirty-six months of extended supervision. The circuit court denied Barry’s postconviction motion challenging the sentences, and Barry appeals.
DISCUSSION
¶5 Barry argues that the circuit court’s sentencing remarks “failed to explain the rationale behind [the] sentencing decision with sufficient specificity.” We disagree.
¶6 Our standard of review is well-settled. Sentencing lies within the circuit court’s
discretion, and appellate review is limited to considering whether discretion
was erroneously exercised. State
v. Gallion, 2004 WI 42, ¶17, 270
¶7 The circuit court must consider the primary sentencing
factors of “the gravity of the offense, the character of the defendant, and the
need to protect the public.” State
v. Ziegler, 2006 WI App 49, ¶23, 289
(1) [p]ast record of criminal offenses; (2) history of
undesirable behavior pattern; (3) the defendant’s personality, character and
social traits; (4) result of presentence investigation; (5) vicious or
aggravated nature of the crime; (6) degree of the defendant’s culpability;
(7) defendant’s demeanor at trial; (8) defendant’s age, educational background
and employment record;
(9) defendant’s remorse, repentance and cooperativeness; (10) defendant’s need
for close rehabilitative control;
(11) the rights of the public; and (12) the length of pretrial detention.
State v. Harris, 119
¶8 The circuit court must “specify the objectives of the
sentence on the record. These objectives
include, but are not limited to, the protection of the community, punishment of
the defendant, rehabilitation of the defendant, and deterrence to others.” Gallion, 270
¶9 “When the exercise of discretion has been demonstrated, we
follow a consistent and strong policy against interference with the discretion
of the [circuit] court in passing sentence.”
Stenzel, 276
¶10 In the instant case, the circuit court began by discussing the
gravity of the offenses, noting that Barry possessed a substantial amount of
cocaine and that he committed new offenses while out of custody on bail for a
pending charge. The circuit court viewed
Barry’s character as a mitigating factor in some respects, recognizing that he
accepted responsibility and that he had developed “skills and potential that
[he] can ... use[] to some day become a productive member of society.” Nonetheless, the circuit court noted with
concern that Barry continued to sell cocaine despite knowing “how addictive
this drug is,” and the circuit court took into account Barry’s prior conviction
for delivering cocaine. See
¶11 The circuit court discussed a variety of additional factors. It recognized that Barry was “a young man [with] a baby on the way.” Further, the court acknowledged that Barry was articulate and had successfully completed high school, but the court also found that he had chosen to traffic in narcotics as an easy way of making money.
¶12 The circuit court selected deterrence as the primary objective of the sentence. The court explained to Barry that he was “dealing poison within this community.” Therefore, the court determined that “a message needs to be sent to [Barry] and to the entire community that if you continue to deal drugs no matter how tender your age is and what volumes of drugs, particularly cocaine, that certainly there needs to be some significant consequences.”
¶13 Barry asked the circuit court to impose a “short ... three-year sentence,” bifurcated as eighteen months of initial incarceration and eighteen months of extended supervision. The circuit court observed, however, that Barry received exactly that sentence for an earlier offense and that he did not comply with the terms of his extended supervision. Accordingly, the court rejected Barry’s sentencing recommendation and instead imposed concurrent six-year terms of imprisonment, bifurcated as three years each of initial confinement and extended supervision.
¶14 Barry asserts that the circuit court did not explain which
factors “required a sentence of the length imposed by the court.” He believes that the circuit court must
identify “the factors on which it most relies in determining the
appropriate length of sentence in a particular case.” (Emphasis in original.) Barry misunderstands the circuit court’s
sentencing obligations. The circuit
court is not required to assign comparative weight to any sentencing factor. Fisher, 285
¶15 We further reject Barry’s suggestion that the sentences imposed
in this case were unduly harsh or excessive.[2] Barry faced an aggregate prison term of
twenty-two years and six months. See Wis.
Stat. §§ 939.50(3)(f) & (h), 961.48(1)(b). The circuit court imposed a term of
imprisonment that required Barry to serve less than a seventh of the available
prison time in initial confinement. “A sentence is unduly harsh when it is ‘so
excessive and unusual and so disproportionate to the offense committed as to
shock public sentiment and violate the judgment of reasonable people concerning
what is right and proper under the circumstances.’” State v. Prineas, 2009 WI App 28,
¶29, 316
By the Court.—Judgment and order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.
[1] All references to the Wisconsin Statutes are to the 2007-08 version unless otherwise noted.
[2] Barry’s appellate brief contains assertions in the statement of the appellate issue and in the summary of the argument that the circuit court “impose[d] an excessive sentence.” Although Barry does not develop the contention, we choose to address it for the sake of completeness.